By DOUG SCHMITZ
WASHINGTON, D.C. – Many farmers and ranchers were happy last week when the U.S. Supreme Court confirmed the EPA overstepped its authority under the Clean Water Act ‘Water of the United State rule in ‘Sackett v. EPA.’.
Under the opinion, the court said the Clean Water Act’s authority extends only to wetlands that are ‘indistinguishable’ from the ‘Waters of the United States,’ such as rivers or lakes.
But in order to determine jurisdiction, the ruling stated federal regulators must establish “the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends, and the ‘wetland’ begins.”
According to the 5-4 majority opinion, written by Associate Justice Samuel Alito, “Wetlands that are separate from navigable waterways cannot be considered part of those waters, even if they are located nearby.”
Zippy Duvall, American Farm Bureau Federation president, said the justices respect private property rights.
“Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they deserve a rule that provides clarity and doesn’t require a team of attorneys to properly care for their land,” he said.
Tom Haag, National Corn Growers Association president, said, “This sensible ruling preserves protections for our nation’s valuable water resources, while providing clarity to farmers and others about the process of determining federal jurisdiction over wetlands. This is a great day for corn growers.”
Ariel Wiegard, American Soybean Association director of government affairs, said the issues with ‘Waters of the United States’ go back to the passage of the 1972 Clean Water Act amendments, which established federal authority to restore and protect the quality of the nation’s ‘navigable waters,’ defined in the act as ‘Waters of the United States.’
However, she said the Clean Water Act does not further define ‘Waters of the United States’ – instead, it delegates that responsibility to the EPA and the U.S. Army Corps of Engineers.
“The agencies began defining ‘Waters of the United States’ through regulation in the 1970s,” she said. “The courts became involved almost from the start; the first case made its way to the Supreme Court in 1985.
“Since then, the definition of ‘Waters of the United States’ has ping-ponged between the court system and the agencies, with the agencies generally trying to expand the definition and the Supreme Court reining it back in,” she added.
The case started when Mike and Chantell Sackett, Priest Lake, Idaho, landowners, challenged the EPA in federal court after the EPA prohibited them from building a home on their property near a wetland.
However, the Supreme Court ruled the couple’s land does not fall under the jurisdiction of the Clean Water Act.
The National Cattlemen’s Beef Association submitted an amicus brief in the Sackett case, encouraging the elimination of the ‘significant nexus test’ in exchange for a more practical standard. (According to Cornell University Law School, an amicus brief references a person or group who is not a party to an action, but has a strong interest in the matter.)
The EPA said a ‘significant nexus’ exists if the waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.
“Cattle producers across the country can breathe a sigh of relief today,” said Todd Wilkinson, National Cattlemen’s Beef Association president, and a De Smet, S.D., cattle producer. “Since the EPA’s adoption of the ‘significant nexus’ test, cattle producers have had to retain costly legal services to determine if water features on their property are federally jurisdictional.
The ‘significant nexus test’ gave the EPA and the U.S. Army Corps of Engineers the authority to define ‘Water of the United States’ without a clear guideline to landowners, including farmers and ranchers.
In the decision, the Supreme Court narrowed the jurisdiction of the EPA and the U.S. Army Corps of Engineers by rejecting their ‘significant nexus test’ for defining ‘Water of the United States’ in the Clean Water Act by a unanimous 9-0 vote.
“The Supreme Court ruling sided with a narrower definition of the Clean Water Act jurisdiction, and limited the number of wetlands that would come under the regulation of the Clean Water Act,” said Chandler Goule said, CEO of the National Association of Wheat Growers.
In a second ruling, by a 5-4 vote, the court issued an opinion limiting the definition of adjacent wetlands.
“The court’s decision is something we’ve been waiting for, and we are glad that it finally came down how we expected,” said Scott Smith, Indiana Corn Growers Association president, and a Windfall, Ind., farmer. “This is a great first step. The next step is working with the EPA to develop a clear definition for ‘Water of the United States.’”